PLAINTIFFS’ COMPLAINT 1 123456789 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Cameron H. Totten, Esq. (SBN 180765) Law Offices of Cameron H. Totten 620 N. Brand Blvd., Ste. 405 Glendale, California 91203 Telephone (818) 483-5795 Facsimile (818) 230-9817 ctotten@ctottenlaw.com Attorney for Plaintiffs SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES PLAINTIFFS, vs. SPECIALIZED LOAN SERVICING, LLC; MTC FINANCIAL INC., DBA TRUSTEE CORPS; U.S. BANK NATIONAL ASSOCIATION AS INDENTURE TRUSTEE, ON BEHALF OF THE HOLDERS OF THE TERWIN MORTGAGE TRUST 2007-QHL1 ASSET-BACKED SECURITIES, SERIES 2007-QHL1, WITHOUT RECOURSE; MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC; ALL PERSONS UNKNOWN, CLAIMING ANY LEGAL OR EQUITABLE RIGHT, TITLE, ESTATE, LIEN, OR INTEREST IN THE PROPERTY DESCRIBED IN THE COMPLAINT ADVERSE TO PLAINTIFFS’ TITLE, OR ANY CLOUD ON PLAINTIFFS’ TITLE THERETO; and DOES 1-20, INCLUSIVE, DEFENDANTS. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) PLAINTIFFS’ COMPLAINT FOR (1) NEGLIGENCE; (2) FRAUD; (3) CANCELLATION OF A VOIDABLE CONTRACT UNDER REV & TAX CODE §§ 23304.1, 23305A AND VIOLATION OF CAL. CORP. CODE §§ 191(C)(7); (4) TO SET ASIDE TRUSTEE’S SALE; (5) TO VOID OR CANCEL TRUSTEE’S DEED UPON SALE; (6) TO VOID OR CANCEL ASSIGNMENT OF DEED OF TRUST; (7) WRONGFUL FORECLOSURE; (8) BREACH OF CONTRACT; (9) BREACH OF THE IMPLIED COVENANT OF GOOD FAITH AND FAIR DEALING; (10) UNJUST ENRICHMENT; (11) VIOLATION OF CALIFORNIA BUSINESS AND PROFESSIONS CODE SECTIONS 17200 ET SEQ.; (12) QUIET TITLE; AND (13) SLANDER OF TITLE PLAINTIFFS’ COMPLAINT 2 123456789 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TO THIS HONORABLE COURT, ALL PARTIES AND THEIR ATTORNEYS OF RECORD HEREIN: Plaintiffs hereby allege as follows: PARTIES 3. Defendant Specialized Loan Servicing, LLC is, and at all times herein mentioned was, a Delaware limited liability company, organized and existed under the laws of the State of California, doing business in Los Angeles County, California. 4. Defendant U.S. Bank, National Association, as Indenture Trustee, on Behalf of the Holders of the Terwin Mortgage Trust 2007-QHL1 Asset-Backed Securities, Series 2007-QHL1, Without Recourse (“U.S. Bank”) is, and at all times herein mentioned was, a business entity of unknown form, doing business in Los Angeles County, California. 5. Defendant MTC Financial Inc., dba Trustee Corps (“TC”) is a California corporation with its principal place of business in Orange County, California. 6. Defendant Mortgage Electronic Registration Systems, Inc. (“MERS”), is a Delaware corporation with its principal place of business in the State of Virginia. 8. “All Persons Unknown, Claiming Any Legal Or Equitable Right, Title, Estate, Lien, Or Interest In The Property Described In The Complaint Adverse To Plaintiffs’ Title, Or Any Cloud On Plaintiffs’ Title Thereto” are sued herein pursuant to California Code of Civil Procedure Section 762.020(a). 9. Plaintiffs do not know the true names and capacities of the defendants sued herein as DOES 1 through 20 (“DOE Defendants”), inclusive, and therefore sues said DOE Defendants by fictitious names. Plaintiffs are informed and believe and based on such information and belief aver that each of the DOE Defendants is contractually, strictly, negligently, intentionally, vicariously liable and or otherwise legally responsible in some manner PLAINTIFFS’ COMPLAINT 3 123456789 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 for the acts and omissions described herein. Plaintiffs will amend this Complaint to set forth the true names and capacities of each DOE Defendant when same are ascertained. 10. Plaintiffs are informed and believe and based on such information and belief aver that Defendants U.S. Bank, SLS and DOE Defendants 1 through 10, inclusive, and each of them, are and at all material times have been, the agents, servants or employees of each other, purporting to act within the scope of said agency, service or employment in performing the acts and omitting to act as averred herein. U.S. Bank, SLS, MTC, MERS and DOE Defendants 6 through 10, inclusive, are hereinafter collectively referred to as the “Foreclosing Defendants.” 11. Each of the Defendants named herein are believed to, and are alleged to have been acting in concert with, as employee, agent, co-conspirator or member of a joint venture of, each of the other Defendants, and are therefore alleged to be jointly and severally liable for the claims set forth herein, except as otherwise alleged. GENERAL ALLEGATIONS 12. Prior to July 5, 2007, Plaintiffs purchased certain real property commonly known as (the “Subject Property”). 13. On or about July 5, 2007, Plaintiffs refinanced the loan on the Subject Property through Quality Home Loans (“Quality”) and executed a promissory note in favor of Quality. The note was secured by a deed of trust with Quality as beneficiary. 14. Plaintiffs made each payment due on the new loan. 15. On or about November 1, 2007, SLS acquired the servicing rights to Plaintiffs’ loan from Quality. Plaintiffs continued to make their payments but now remitted them to SLS. 16. In August 2008, the monthly payment due under the note was $3,021.15. On or about August 1, 2008, Plaintiff made their monthly payment to SLS. PLAINTIFFS’ COMPLAINT 4 123456789 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 17. On or about September 1, 2008, Plaintiffs again made their regular monthly mortgage payment on the loan to SLS. However, on or before September 29, 2008, Plaintiffs were notified by SLS that SLS allegedly had not received Plaintiffs’ monthly mortgage payments for the months of August and September 2008. Plaintiffs advised Mr., a representative of SLS, that the payments had indeed been made on time. In response, Mr. requested written verification of the payments. 18. On or about September 30, 2008, Plaintiffs faxed to SLS correspondence and copies of Plaintiffs’ bank confirmations showing the debits on August 3 and September 4, 2008, going to SLS. 19. In response, Mr. contacted Plaintiffs and stated that the bank confirmations were insufficient proof of payment and requested further verification. Plaintiffs again faxed to Mr. on October 2nd and October 30th more bank transaction records showing the debits on August 3 and September 4, 2008, both paid to SLS. 20. On or about November 4, 2008, Plaintiffs were contacted by a gentleman who identified himself as a representative of SLS named who was calling on behalf of Mr. . told Plaintiffs that SLS had not been successful in locating Plaintiffs’ August and September payments, but that SLS was placing a waiver on the October and November 2008 payments as a show of good faith. said he expected SLS to locate the payments soon. 21. Plaintiffs made several telephone calls on a regular basis to check on the status of the payments. After a couple of weeks of receiving no correspondence, Plaintiffs spoke with “e” of SLS. advised Plaintiffs that their account was not current for August, September, October and November, and that the next payment due was for December 2008. further advised that Plaintiffs should be receiving a new accounting summary within the next few days. PLAINTIFFS’ COMPLAINT 5 123456789 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 22. On or about November 23, 2008, when Plaintiffs had not received the new accounting, Plaintiffs contacted SLS inquiring about it. Plaintiffs spoke with “” another SLS representative. stated that he knew nothing about the August and September payments, or a new accounting or any arrangements to waive the October and November payments. He further stated that if SLS did not receive payment within the next 24 hours, SLS would foreclose on the Subject Property. Plaintiffs then made several calls to Mr. to confirm the waivers but none of them returned Plaintiffs’ calls. Plaintiffs also called SLS’s Vice President of Customer Service, , but she did not return Plaintiffs’ call either. 23. Subsequently, on or about January 24, 2009, Plaintiffs received notice that a Notice of Default and Election to Sell Deed of Trust (“Notice”) had been recorded on the Subject Property. The Notice was executed on January 9, 2009, and recorded on January 12, 2009. However, Plaintiffs were not familiar with the entities set forth therein. Specifically, the Notice stated that the Deed of Trust executed by Plaintiffs “was to secure obligations in favor of Mortgage Electronic Registration Systems, Inc. [“MERS”], as Beneficiary,” not Quality. MERS was never a beneficiary of Plaintiffs’ loan. Additionally, MERS was never entitled to receive payments from Plaintiffs pursuant to the note and MERS has never been qualified to conduct business in the State of California. Thus, MERS did not have legal standing or any legal right to substitute the trustee under the Deed of Trust. Moreover, the Notice listed MTC as the trustee and MTC executed and recorded the Notice. The Notice did not include a declaration pursuant to Civil Code Section 2923.5. A true and correct copy of the Notice is attached hereto as Exhibit “A.” 24. The Notice was wrongfully recorded by MTC as Plaintiffs were not in default with their payment obligations as they made (and provided proof of payment) for the August and September 2008 payments at issue. Moreover, the Notice was wrongful and improper because PLAINTIFFS’ COMPLAINT 6 123456789 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MTC did not have the legal right to act as trustee under the Deed of Trust. Specifically, the Substitution of Trustee which allegedly substituted MTC in as trustee was not executed until March 10, 2009, and was not recorded until April 13, 2009. A true and correct copy of said Substitution of Trustee is attached hereto as Exhibit “B.” Thus, MTC was not the duly appointed trustee under the Deed of Trust when it executed the Notice on January 9, 2009. 25. Prior to their receipt of the Notice, Plaintiffs did not receive any telephone calls or written correspondence from SLS. 26. In or about February 2009, Plaintiffs retained what they believed to be legal counsel, Mr., to stop the foreclosure. On or about April 10, 2009, Mr. filed a complaint against SLS and others with the Los Angeles Superior Court. 27. In or about mid-late April 2009, Plaintiffs received a Notice of Trustee’s Sale in the mail and promptly gave it to Mr.. Attached to the Notice of Trustee’s Sale was a declaration pursuant to Section 2923.5 signed by in which he testifies that he sent a letter to Plaintiffs, attempted to contact Plaintiffs by telephone at least 3 times and sent a certified letter notifying Plaintiffs of the default. The facts set forth in the declaration were not true. Prior to receiving the Notice of Default, Plaintiffs received no communication or contact, in writing or telephonically, from SLS other than the October 2008 statement. 28. Based upon information and belief, in or around May 2009, prior to the foreclosure of the Subject Property but after the recording of the Notice of Default, MERS (acting as beneficiary) assigned the Deed of Trust to US Bank. The Assignment was recorded by MTC. The Assignment by MERS was improper because MERS never had a beneficial interest in the Subject Property and was merely a “nominee” under the Deed of Trust. Therefore, the Assignment was invalid and void. Moreover, the recording of the Notice of PLAINTIFFS’ COMPLAINT 7 123456789 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Default was invalid and void because it occurred approximately two months prior to the alleged assignment of the Deed of Trust to US Bank. 29. Based upon information and belief, there was no assignment of the Note with the Deed of Trust, none of the Foreclosing Defendants are the holder of the Note in due course, and none of the Foreclosing Defendants were assigned the Note by Quality. Accordingly, none of the Foreclosing Defendants were ever entitled to enforce the Note. 30. Based upon information and belief, on or about May 4, 2009, notwithstanding of the fact that it was not the trustee under the Deed of Trust and it did not have any authority from the beneficiary under the Deed of Trust, MTC went forward with the public auction which resulted in US Bank being granted and conveyed the Subject Property by MTC, allegedly acting as the duly appointed Trustee under the Deed of Trust. The Trustee’s Deed Upon Sale which was executed and recorded by MTC states that US Bank was the foreclosing beneficiary. A true and correct copy of the Trustee’s Deed Upon Sale is attached hereto as Exhibit “C.” The Trustee’s Deed Upon Sale was also invalid and void because it was based on an invalid and void Assignment of the Deed of Trust. 31. Based upon information and belief, the Trustee’s Sale was also invalid because it took place without anyone ever presenting the original note, or original and valid assignments of the note, to MTC. The failure to do so resulted in an invalid foreclosure sale. 32. Based upon information and belief, at no time did MTC know, in fact, who the actual beneficiary of the Deed of Trust was. Further, Plaintiffs are informed and belief that the actual beneficiary of the Deed of Trust NEVER provided a declaration to MTC stating that Plaintiffs were in default under the terms of the Deed of Trust and, accordingly, the recording of the Notice of Default and any subsequent documents relating to a non-judicial foreclosure were recorded in violation of California Civil Code section 2924(a)(1)(C). PLAINTIFFS’ COMPLAINT 8 123456789 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 33. On or about June 12, 2009, Plaintiffs received a courtesy copy of a Notice of Unlawful Detainer from the Court which was Plaintiffs’ first notice that the Foreclosing Defendants had foreclosed on the Subject Property. 34. Thereafter, Plaintiffs discovered that Mr. was not in fact an attorney and had defrauded Plaintiffs. Plaintiffs then had to defend against the Unlawful Detainer Action in pro per. Unfortunately, a judgment was entered against them and a Writ of Possession was issued on or about August 13, 2009. Plaintiffs were locked out of their home by the Sheriffs shortly thereafter. FIRST CAUSE OF ACTION FOR NEGLIGENCE (AGAINST THE FORECLOSING DEFENDANTS) 35. Plaintiffs incorporate herein by reference the allegations made in paragraphs 1 through 34, inclusive, as though fully set forth herein. 36. At all times relevant herein, the Foreclosing Defendants, acting as Plaintiffs’ lender and loan servicer, had a duty to exercise reasonable care and skill to maintain proper and accurate loan records and to discharge and fulfill the other incidents attendant to the maintenance, accounting and servicing of loan records, including, but not limited, accurate crediting of payments made by Plaintiffs. 37. In taking the actions alleged above, and in failing to take the actions as alleged above, the Foreclosing Defendants breached their duty of care and skill to Plaintiffs in the servicing of Plaintiffs’ loan by, among other things, failing to properly and accurately credit payments made by Plaintiffs toward the loan, preparing and filing false documents, and foreclosing on the Subject Property without having the legal authority and/or proper documentation to do so. PLAINTIFFS’ COMPLAINT 9 123456789 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 38. As a direct and proximate result of the negligence and carelessness of the Foreclosing Defendants as set forth above, Plaintiffs suffered general and special damages in an amount to be determined at trial. SECOND CAUSE OF ACTION FOR NEGLIGENCE (AGAINST DEFENDANT) 39. Plaintiffs incorporate herein by reference the allegations made in paragraphs 1 through 38, inclusive, as though fully set forth herein. 40. In or around February 2009, Plaintiffs retained Defendant to represent them in connection with the defense of the foreclosure process which had been commenced by the Foreclosing Defendants. 41. Defendant represented himself as an attorney but was not an attorney. Therefore, Defendant is liable under a theory of negligence per se as he was engaged in criminal conduct. 42. Additionally, Defendant failed to use reasonable skill and care in the representation of Plaintiffs in that he failed to take any action other than filing a complaint in the wrong judicial district. He did not advise and consult with Plaintiffs as to their options or the ramifications of the Foreclosing Defendants’ actions. Moreover, he failed to notify Plaintiffs of the pending foreclosure or take any action to try to stop it through negotiation or otherwise. 43. Plaintiffs are informed and believe, and on the basis of that information and belief allege, that had Defendant used proper skill and care in the handling of Plaintiffs’ matter, Plaintiffs would have been able to save their home. 44. As a direct and proximate result of the negligence and carelessness of Defendant as set forth above, Plaintiffs wasted several critical months which could have been used to stop PLAINTIFFS’ COMPLAINT 10 123456789 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 the foreclosure of their property through negotiation or legal action resulting in general and special damages to Plaintiffs in an amount to be determined at trial. THIRD CAUSE OF ACTION FOR FRAUD (AGAINST THE FORECLOSING DEFENDANTS) 45. Plaintiffs incorporate herein by reference the allegations made in paragraphs 1 through 44, inclusive, as though fully set forth herein. 46. The Foreclosing Defendants engaged in a pattern and practice of defrauding Plaintiffs in that, during the life of the mortgage loan, the Foreclosing Defendants failed to properly credit payments made and foreclosed on the Subject Property based on Plaintiffs’ alleged non-payment which they knew to be false. 47. The Foreclosing Defendants had actual knowledge that the Plaintiffs’ account was not accurate but that the Foreclosing Defendants could use the inaccuracy to foreclose on the Subject Property which had substantial equity, to recover its excessive fees, charges and interest. Plaintiffs made such payments and provided proof of the payments based on the improper, inaccurate, and fraudulent representations as to their account. The Foreclosing Defendants also utilized amounts known to the Defendants to be inaccurate to determine the amount allegedly due and owing for purposes of foreclosure. 48. Additionally, the Foreclosing Defendants concealed material facts known to them but not to Plaintiffs regarding payments, notices, assignments, transfers, late fees and charges with the intent to defraud Plaintiffs. 49. The Foreclosing Defendants made the above-referenced false representations, concealments and non-disclosures with knowledge of the misrepresentations, intending to induce Plaintiffs' reliance, which the unsuspecting Plaintiffs justifiably relied upon, resulting in PLAINTIFFS’ COMPLAINT 11 123456789 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 damage to their credit standing, costs and loss of their property. Plaintiffs were unaware of the true facts. Had Plaintiffs known the true facts, Plaintiffs, among other things, would not have maintained the Foreclosing Defendants as their lender, servicer and trustee (and their alleged agents) and/or would have taken legal action immediately to save their house. 50. As a result of the Foreclosing Defendants’ fraudulent conduct, Plaintiffs have suffered compensatory, general and special damages in an amount to proof. Additionally, the Foreclosing Defendants acted with malice, fraud and/or oppression and, thus, Plaintiffs are entitled to an award of punitive damages. FOURTH CAUSE OF ACTION FOR FRAUD (AGAINST DEFENDANT ) 51. Plaintiffs incorporate herein by reference the allegations made in paragraphs 1 through 50, inclusive, as though fully set forth herein. 52. In or around February 2009, Plaintiffs retained Defendant to represent them in connection with the defense of the foreclosure process which had been commenced by the Foreclosing Defendants. 53. Defendant falsely and fraudulently represented himself to be a licensed California attorney. However, the truth was that he was neither licensed nor an attorney. 54. Defendant concealed the true facts for the purpose of defrauding Plaintiffs. 55. Defendant made the above-referenced false representations, concealments and non-disclosures with knowledge of the misrepresentations, intending to induce Plaintiffs' reliance, which the unsuspecting Plaintiffs justifiably relied upon, resulting in general and special damages as well as the loss of the Subject Property. Plaintiffs were unaware of the true PLAINTIFFS’ COMPLAINT 12 123456789 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 facts. Had Plaintiffs known the true facts, Plaintiffs would not have retained Defendant Jones to represent them and would not have paid Defendant anything. 56. As a result of Defendant fraudulent conduct, Plaintiffs have suffered compensatory, general and special damages in an amount according to proof at trial. Additionally, Defendant acted with malice, fraud and/or oppression and, thus, Plaintiffs are entitled to an award of punitive damages. FIFTH CAUSE OF ACTION FOR CANCELLATION OF A VOIDABLE CONTRACT UNDER REV & TAX CODE §§ 23304.1, 23305A AND VIOLATION OF CAL. CORP. CODE §§ 191(C)(7) (AGAINST THE FORECLOSING DEFENDANTS) 57. Plaintiffs incorporate herein by reference the allegations made in paragraphs 1 through 56, inclusive, as though fully set forth herein. 58. MERS operates as a record-keeping database company in which MERS contracts with lenders to track security instruments in return for an annual fee. 59. Based upon information and belief, MERS was at all times herein operating in the State of California without registering as a foreign corporation to avoid paying taxes to the state. 60. As a result of MERS’s failure to comply with the California franchise tax laws, the Deed of Trust alleged herein is voidable by Plaintiff pursuant to Rev & Tax Code §§ 23304.1, 23304.1(b), and 23305a. 61. Moreover, MERS is not in the business of creating evidences, and it is not a foreign lending institution. It does not originate loans, never had any true interest in the subject loan or Deed of Trust, and thereby does not meet any legal exceptions to the registration requirement for foreign corporations. PLAINTIFFS’ COMPLAINT 13 123456789 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 62. MERS conducted business in California when it was not registered with the Secretary of State. Specifically, it prepared and/or executed a Substitution of Trustee and Assignment of Deed of Trust in April and May 2009. The substitution allowed the new Trustee, MTC, to record a Notice of Default on the Subject Property. 63. At all relevant times herein, MERS was not registered in California and could not prepare or execute the Assignment of Deed of Trust. MERS had no legal authority to take such action. Deeds of Trust are contractual in nature. A contract made by a corporation doing business in California while that corporation has failed to perform its franchise tax obligations is voidable at the option of any party to the contract, other than the [delinquent] taxpayer. Thus, MERS did not have the legal capacity to enter into a contract with Plaintiffs or anyone else, and Plaintiffs have the option of voiding the contract. Therefore, any action that MERS took with regard to assigning the within deed of trust and substituting the trustee would be ultra vires and void. 64. Plaintiffs hereby expressly request an adjudication to the effect that the assignment of the deed of trust and substitution of trustee by MERS are void. SIXTH CAUSE OF ACTION TO SET ASIDE TRUSTEE’S SALE (AGAINST THE FORECLOSING DEFENDANTS) 65. Plaintiffs incorporate herein by reference the allegations made in paragraphs 1 through 64, inclusive, as though fully set forth herein. 66. The Foreclosing Defendants never had the legal authority to foreclose, i.e., the authority to exercise the power of sale as an assignee of the Note and Deed of Trust, because the Foreclosing Defendants’ interest was never acknowledged and recorded in violation of Civil Code § 2932.5, resulting in the non-judicial foreclosure sale being void ab initio. PLAINTIFFS’ COMPLAINT 14 123456789 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 67. Moreover, the Foreclosing Defendants never had the legal authority to foreclose because the instrument (Deed of Trust), which permitted foreclosure if the borrower was in default, is void as it was improperly assigned and/or transferred to the Foreclosing Defendants from the original lender. Therefore, the Deed of Trust could not provide a basis for a foreclosure, and the non-judicial foreclosure is void ab initio. 68. Accordingly, Plaintiffs hereby request an order of this Court that the Trustee’s Sale was irregular in that it was legally void and conducted without any right or privilege by the Foreclosing Defendants. SEVENTH CAUSE OF ACTION TO VOID OR CANCEL TRUSTEE’S DEED UPON SALE (AGAINST THE FORECLOSING DEFENDANTS) 69. Plaintiffs incorporate herein by reference the allegations made in paragraphs 1 through 68, inclusive, as though fully set forth herein. 70. Although the trustee’s deed upon sale appears valid on its face, it is invalid, and of no force and effect, for the reasons set forth above including, inter alia, the fact the Deed of Trust which purportedly secured the Note, which served as the basis for a claim to have the right to conduct a non-judicial foreclosure was at all times void due to the wrongful and improper assignment to the Foreclosing Defendants. 71. Plaintiffs are therefore entitled to an order that the Trustee’s Deed Upon Sale is void ab initio and cancelling such Trustee’s Deed. EIGHTH CAUSE OF ACTION TO VOID OR CANCEL ASSIGNMENT OF DEED OF TRUST (AGAINST THE FORECLOSING DEFENDANTS) PLAINTIFFS’ COMPLAINT 15 123456789 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 72. Plaintiffs incorporate herein by reference the allegations made in paragraphs 1 through 71, inclusive, as though fully set forth herein. 73. The assignment of the deed of trust is invalid, and of no force and effect, for the reasons set forth above including, inter alia, the fact the MERS did not have standing or the legal authority to assign the deed of trust which purportedly secured the Note, and which served as the basis for a claim to have the right to conduct a non-judicial foreclosure. Thus, the assignment of the deed of trust was at all times void. 74. Plaintiffs are therefore entitled to an order that the Assignment of the Deed of Trust is void ab initio and cancelling such Assignment. NINTH CAUSE OF ACTION WRONGFUL FORECLOSURE (AGAINST THE FORECLOSING DEFENDANTS) 75. Plaintiffs incorporate herein by reference the allegations made in paragraphs 1 through 74, inclusive, as though fully set forth herein. 76. Plaintiffs are informed and believe and thereon allege that after the origination and funding of their loan, it was sold to investors as a “mortgage backed security” and that none of the Foreclosing Defendants in this action owned this loan, or the corresponding note. Moreover, none of the Foreclosing Defendants in this action were lawfully appointed as trustee or had the original note assigned to them. Accordingly, none of the Foreclosing Defendants in this action had the right to declare default, cause notices of default to be issued or recorded, or foreclose on Plaintiffs’ interest in the Subject Property. The Foreclosing Defendants were not the note holder or a beneficiary at any time with regard to Plaintiffs’ loan. 77. Plaintiffs further allege on information and belief that none of the Foreclosing Defendants in this action are beneficiaries or representatives of the beneficiary and, if the PLAINTIFFS’ COMPLAINT 16 123456789 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Foreclosing Defendants allege otherwise, they do not have the original note to prove that they are in fact the party authorized to conduct the foreclosure. 78. Plaintiffs’ further allege on information and belief that the loan was sold or transferred without notifying the Plaintiffs in writing. Therefore, the loan is void of legal rights to enforce it. 79. Additionally, The Foreclosing Defendants violated California Civil Code §2923.5(a), which requires a “mortgagee, beneficiary or authorized agent” to “contact the borrower or person by telephone in order to assess the borrower’s financial situation and explore options for the borrower to avoid foreclosure. “Section 2923.5(b) requires a default notice to include a declaration “from the mortgagee, beneficiary, or authorized agent” of compliance with section 2923.5, including attempt “with due diligence to contact the borrower as required by this section.” 80. None of the Foreclosing Defendants contacted Plaintiffs to discuss their financial situation. Moreover, none of the Foreclosing Defendants explored options with Plaintiffs to avoid foreclosure. Additionally, none of the Foreclosing Defendants informed Plaintiffs of the right to have a meeting within 14 days of said contact. Accordingly, the Foreclosing Defendants did not fulfill their legal obligation to Plaintiffs. 81. Thus, the Foreclosing Defendants engaged in a fraudulent foreclosure of the Subject Property in that the Foreclosing Defendants did not have the legal authority to foreclose on the Subject Property and, alternatively, if they had the legal authority, they failed to comply with Civil Code Section 2923.5 and 2923.6. 82. As a result of the above alleged wrongs, Plaintiffs have suffered general and special damages in an amount to be determined at trial. TENTH CAUSE OF ACTION FOR PLAINTIFFS’ COMPLAINT 17 123456789 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 BREACH OF CONTRACT (AGAINST THE FORECLOSING DEFENDANTS) 83. Plaintiffs incorporate herein by reference the allegations made in paragraphs 1 through 82, inclusive, as though fully set forth herein. 84. Plaintiffs’ original loan agreement set forth dates by which monthly principal and interest payments were due, and when late fees and other charges could be assessed. 85. Alternatively, if the original note and deed of trust were properly assigned to Defendants, Defendants breached the note and deed of trust that Plaintiffs signed in July 2007. The terms of the note required payments made by Plaintiffs to be applied properly to the note. 86. The Foreclosing Defendants breached the note and deed of trust by failing to apply the payments made by Plaintiffs in August and September 2008 to Plaintiffs’ loan, the result of which led to the Foreclosing Defendants eventually foreclosing on the Subject Property. 87. As a proximate result of Defendants' breaches, Plaintiffs have suffered compensatory damages in an amount to be proven at trial. ELEVENTH CAUSE OF ACTION FOR BREACH OF THE IMPLIED COVENANT OF GOOD FAITH AND FAIR DEALING (AGAINST THE FORECLOSING DEFENDANTS) 88. Plaintiffs incorporate herein by reference the allegations made in paragraphs 1 through 87, inclusive, as though fully set forth herein. 89. Every contract imposes upon each party a duty of good faith and fair dealing in its performance and its enforcement. This implied covenant of good faith and fair dealing requires that no party will do anything that will have the effect of impairing, destroying, or injuring the rights of the other party to receive the benefits of their agreement. The covenant PLAINTIFFS’ COMPLAINT 18 123456789 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 implies that in all contracts each party will do all things reasonably contemplated by the terms of the contract to accomplish its purpose. This covenant protects the benefits of the contract that the parties reasonably contemplated when they entered into the agreement. 90. Alternatively, if the note and deed of trust was validly and properly assigned to the Foreclosing Defendants, the Foreclosing Defendants did not act in good faith and did not deal fairly with Plaintiffs in connection with the note and deed of trust when they refused to properly apply the August and September 2008 payments to their loan and thereafter foreclosed on the Subject Property even though Plaintiffs provided proof of payments for the allegedly skipped months and thereafter refused to resolve the mistake with Plaintiffs in an equitable fashion. 91. The Foreclosing Defendants enjoyed substantial discretionary power affecting the rights of Plaintiff during the events alleged in this Complaint. They were required to exercise such power in good faith. 92. The Foreclosing Defendants engaged in such conduct to drive Plaintiffs into foreclosure so that they could acquire the Subject Property with its large equity at a bargain basement price. These actions were a bad faith breach of the contract between Plaintiffs and the Foreclosing Defendants which show that they had no intention of performing the contract, consisting of the original note and deed of trust, in good faith. 93. MERS willfully breached their implied covenant of good faith and fair dealing with Plaintiff when MERS allowed their alleged agent to execute the Assignment of the Deed of Trust in order to appoint a new Trustee to begin foreclosure on the Subject Property. 94. As a result of the Foreclosing Defendants’ breaches of this covenant, Plaintiffs have suffered general and special damages in an amount to be determined at trial. TWELFTH CAUSE OF ACTION FOR PLAINTIFFS’ COMPLAINT 19 123456789 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 UNJUST ENRICHMENT (AGAINST THE FORECLOSING DEFENDANTS) 95. Plaintiffs incorporate herein by reference the allegations made in paragraphs 1 through 94, inclusive, as though fully set forth herein. 96. By their wrongful acts and omissions, the Foreclosing Defendants have been unjustly enriched at the expense of Plaintiffs, and thus Plaintiffs have been unjustly deprived. 97. By reason of the foregoing, Plaintiffs seek restitution from the Foreclosing Defendants, and an order of this Court disgorging all profits, benefits, and other compensation obtained by the Foreclosing Defendants from their wrongful conduct. THIRTEENTH CAUSE OF ACTION FOR VIOLATION OF CALIFORNIA BUSINESS AND PROFESSIONS CODE SECTIONS 17200 ET SEQ. (AGAINST THE FORECLOSING DEFENDANTS) 98. Plaintiffs incorporate herein by reference the allegations made in paragraphs 1 through 97, inclusive, as though fully set forth herein. 99. California Business & Professions Code Section 17200, et seq., prohibits acts of unfair competition, which means and includes any “fraudulent business act or practice . . .” and conduct which is “likely to deceive” and is “fraudulent” within the meaning of Section 17200. 100. As more fully described above, the Foreclosing Defendants’ acts and practices are likely to deceive, constituting a fraudulent business act or practice. This conduct is ongoing and continues to this date. 101. Specifically, the Foreclosing Defendants engage in deceptive business practices with respect to mortgage loan servicing, assignments of notes and deeds of trust, foreclosure of residential properties and related matters by PLAINTIFFS’ COMPLAINT 20 123456789 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (a) Assessing improper or excessive late fees; (b) Improperly characterizing customers’ accounts as being in default or delinquent status to generate unwarranted fees; (c) Instituting improper or premature foreclosure proceedings to generate unwarranted fees; (d) Misapplying or failing to apply customer payments; (e) Failing to provide adequate monthly statement information to customers regarding the status of their accounts, payments owed, and/or basis for fees assessed; (f) Seeking to collect, and collecting, various improper fees, costs and charges, that are either not legally due under the mortgage contract or California law, or that are in excess of amounts legally due; (g) Mishandling borrowers’ mortgage payments and failing to timely or properly credit payments received, resulting in late charges, delinquencies or default; (h) Treating borrowers as in default on their loans even though the borrowers have tendered timely and sufficient payments or have otherwise complied with mortgage requirements or California law; (i) Failing to disclose the fees, costs and charges allowable under the mortgage contract; (j) Ignoring grace periods; (k) Executing and recording false and misleading documents; and (l) Acting as beneficiaries and trustees without the legal authority to do so. 102. The Foreclosing Defendants fail to act in good faith as they take fees for services but do not render them competently and in compliance with applicable law. PLAINTIFFS’ COMPLAINT 21 123456789 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 103. Moreover, the Foreclosing Defendants engage in a uniform pattern and practice of unfair and overly-aggressive servicing that result in the assessment of unwarranted and unfair fees against California consumers, and premature default often resulting in unfair and illegal foreclosure proceedings. The scheme implemented by the Foreclosing Defendants is designed to defraud California consumers and enrich the Foreclosing Defendants. 104. The foregoing acts and practices have caused substantial harm to California consumers. 105. As a direct and proximate cause of the unlawful, unfair and fraudulent acts and practices of the Foreclosing Defendants, Plaintiffs and California consumers have suffered and will continue to suffer damages in the form of unfair and unwarranted late fees and other improper fees and charges. 106. By reason of the foregoing, the Foreclosing Defendants have been unjustly enriched and should be required to disgorge their illicit profits and/or make restitution to Plaintiffs and other California consumers who have been harmed, and/or be enjoined from continuing in such practices pursuant to California Business & Professions Code Sections 17203 and 17204. Additionally, Plaintiffs are therefore entitled to injunctive relief and attorney’s fees as available under California Business and Professions Code Sec. 17200 and related sections. FOURTEENTH CAUSE OF ACTION FOR QUIET TITLE (AS TO DEFENDANTS US BANK; ALL PERSONS UNKNOWN, CLAIMING ANY LEGAL OR EQUITABLE RIGHT, TITLE, ESTATE, LIEN, OR INTEREST IN THE PROPERTY DESCRIBED IN THE COMPLAINT ADVERSE TO PLAINTIFFS’ TITLE, OR ANY CLOUD ON PLAINTIFFS’ TITLE THERETO; AND DOES 1 THROUGH 20) PLAINTIFFS’ COMPLAINT 22 123456789 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 107. Plaintiffs incorporate herein by reference the allegations made in paragraphs 1 through 106, inclusive, as though fully set forth herein. 108. Plaintiffs are the equitable owners of the Subject Property which has the following legal description: 109. Plaintiffs seek to quiet title against the claims of Defendants US Bank ; ALL PERSONS UNKNOWN, CLAIMING ANY LEGAL OR EQUITABLE RIGHT, TITLE, ESTATE, LIEN, OR INTEREST IN THE PROPERTY DESCRIBED IN THE COMPLAINT ADVERSE TO PLAINTIFF’S TITLE, OR ANY CLOUD ON PLAINTIFF’S TITLE THERETO; and DOES 1 through 20 (collectively referred to herein as the “Title Defendants”) as the Title Defendants hold themselves out as entitled to fee simple ownership of the Subject Property by and through their purchase of the property at the trustee’s sale held on or about May 4, 2009. In fact, the Title Defendants had no right to title or interest in the Subject Property and no right to entertain any rights of ownership including the right to foreclosure, offering the Subject Property for sale at a trustee’s sale, demanding possession or filing cases for unlawful detainer. Nevertheless, the Title Defendants proceeded with a non-judicial foreclosure sale, through MTC as alleged trustee, illegally and with unclean hands. Plaintiffs are willing to tender the amount received subject to equitable adjustment for the damage caused to the Plaintiffs by the Title Defendants’ activities. 110. In July 2007, Plaintiffs executed the Deed of Trust which listed the trustee as T.D. Service Company. Later, MTC foreclosed on the Subject Property. At the time that MTC signed the Notice of Default, MTC had not been substituted as the trustee in place of T.D. Service Company. As the Notice of Default must be signed by the trustee, either original or PLAINTIFFS’ COMPLAINT 23 123456789 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 substituted, and the beneficiary or trustee, either original or substituted, must comply with California Civil Code Section 2923.5, the trustee’s sale is void because MTC was not the trustee at the time that it signed the Notice of Default and allegedly complied with Section 2923.5. Thus, the trustee and beneficiary failed to follow the statutory rules for a valid foreclosure under the California Civil Code and it is, therefore, void. 111. Additionally, the trustee’s sale is void because the requirements of Civil Code Section 2923.5 were not complied with by MTC or any of the Foreclosing Defendants. 112. Plaintiffs seek to quiet title as of July 5, 2007. Plaintiff seeks a judicial declaration that the title to the Subject Property is vested in Plaintiffs alone and that the Title Defendants and each of them be declared to have no interest estate, right, title or interest in the subject property and that the Title Defendants, their agents and assigns, be forever enjoined from asserting any estate, right title or interest in the Subject Property subject to Plaintiffs’ rights. FIFTEENTH CAUSE OF ACTION FOR SLANDER OF TITLE (AGAINST THE FORECLOSING DEFENDANTS) 113. Plaintiffs incorporate herein by reference the allegations made in paragraphs 1 through 112, inclusive, as though fully set forth herein. 114. Pursuant to, among others, California Civil Code section 2924(a)(1)(C), only the beneficiary of a Deed of Trust or a beneficiary’s assignee or the agent of a beneficiary or its assignee may cause to be recorded against real property either a Notice of Default or a Notice of Trustee’s Sale. 115. MTC, purportedly but falsely acting as either the trustee or the agent of the beneficiary of the Deed of Trust or the agent of US Bank, wrongfully and without privilege, caused a Notice of Default to be recorded against the Subject Property. PLAINTIFFS’ COMPLAINT 24 123456789 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 116. Later, MTC, again purportedly but falsely acting as either the trustee or the agent of the beneficiary of the Deed of Trust or the agent of US Bank, wrongfully and without privilege, caused a Notice of Trustee’s Sale to be recorded against the Subject Property. 117. Finally, MTC, again purportedly but falsely acting as either the trustee or the agent of the beneficiary of the Deed of Trust or the agent of US Bank, wrongfully and without privilege, caused a Trustee’s Deed Upon Sale to be recorded against the Subject Property. 118. None of the Foreclosing Defendants, whether jointly or severally, were ever a trustee, beneficiary or assignee of any beneficiary of any Deed of Trust recorded against the Subject Property. Accordingly, they wrongfully caused the recording of the Notice of Default, Notice of Trustee’s Sale and Trustee’s Deed Upon Sale against the Subject Property. 119. US Bank, wrongfully and without privilege, has published matters or caused matters to be published that they are the current owners of the Subject Property which is untrue and disparaging to Plaintiffs’ interest in the Subject Property. 120. By doing the acts described above, the Foreclosing Defendants have slandered Plaintiffs’ title to the Subject Property. 121. In that the conduct and acts of the Foreclosing Defendants violated, among others, California Civil Code section 2924(a)(1)(C), such conduct and acts were not privileged. 122. The conduct of the Foreclosing Defendants caused Plaintiffs to suffer general and special damages in an amount to be proven at trial. PRAYER FOR RELIEF Wherefore, Plaintiffs pray for judgment against the Defendants and each of them, jointly and severally, as follows: 1. For a declaration of the rights and duties of the parties, specifically that the foreclosure of Plaintiffs’ residence was wrongful. PLAINTIFFS’ COMPLAINT 25 123456789 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2. For issuance of an Order canceling all Trustee’s Deed Upon Sale. 3. To vacate the Trustee’s Deed. 4. To vacate and set aside the foreclosure sale. 5. To quiet title in favor of Plaintiff and against Defendants. 6. For compensatory, special, general and punitive damages according to proof against all Defendants. 7. Pursuant to Business and Professions Code § 17203, that all Defendants, their successors, agents, representatives, employees, and all persons who act in concert with them be permanently enjoined from committing any acts of unfair competition in violation of § 17200, including, but not limited to, the violations alleged herein. 8. For civil penalties pursuant to statute, restitution, injunctive relief and reasonable attorneys fees according to proof. 9. For reasonable costs of suit and such other and further relief as the Court deems proper. DATED: May 4, 2010 LAW OFFICES OF CAMERON H. TOTTEN By: ____________________________ Cameron H. Totten Attorney for Plaintiffs

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